The claim
“The only place with more expensive Legal Aid than England and Wales is Northern Ireland, and no doubt they’ll be addressing the same question”
Ken Clarke, Justice Secretary, on BBC Radio 4’s Today programme, June 29, 2011

The background
When he’s not caught napping in Prime Minister’s Questions, Ken Clarke is kept awake during the day by the conundrum of cutting the Ministry of Justice’s budget of £9bn by £2bn.

Mr Clarke plans to recoup half of the money by cutting admin and management costs, before culling England and Wales’ legal aid bill by £350m (the total annual bill is £2bn).

But how lavish is our legal aid system? FactCheck investigates.

The analysis

It is a little known fact, according to deputy head of law at Cardiff University, that spending on both civil and criminal legal aid in England and Wales has actually dropped in real terms since 2003-04.

“Legal aid spending is no longer criticised on the basis that it is out of control,” Professor Richard Moorhead told the Justice Committee in January. “The justification for legal aid costs has now shifted to comparing our system with others.”

Sweep a glance across Europe, and budgets for legal aid are generally increasing – up 23 per cent between 2004 and 2008, according to the Council of Europe.

Latest data from the Council of Europe shows that England and Wales spent 34.5 euros a head – or 0.15 per cent of GDP in 2008. The median is 1.7 euros.

Outside Europe, comparisons get murky – as the Justice Committee acknowledged, “international comparisons are difficult, because of the many variables between different systems, and there are significant gaps in the research”.

This much we do know: in October 2009, the Ministry of Justice (MoJ) published a comparative study, by Professors Bowles and Perry of York University, of publicly-funded legal services and justice systems of England and Wales, Australia, Canada, France, Germany, Netherlands, New Zealand and Sweden. The data examined covered the period 2000-01 to 2006-07.

Bowles and Perry found that “on almost all of the components of the (legal aid) expenditure” more was spent in England and Wales than the other countries.

According to their report, England and Wales are grappling with more civil and criminal cases than any other countries analysed. Our spend per capita is also well above that of Common Law comparatives New Zealand and Canada (6.3 euros and 6.2 euros respectively in 2006).

Not only do we have more cases than most countries, but we have a high number of legally-aided criminal cases – and it’s these that are the “most important single driving factor of higher expenditure” for the MoJ.

As Steve Hynes, director of Legal Action Group, pointed out to FactCheck, we have 300 or 400 criminal cases a year that cost the taxpayer millions. “We have to deal with a few hundred high cost cases – terrorism cases for example – that take up half the budget for Crown and High Court cases,” he said.

“Cutting the Legal Aid budget won’t affect these (high profile) cases, it will cut the costs of legal help – the initial legal advice that people get that stops people going to court,” Mr Hynes added.

Supreme Court Justice Lady Hale noted this week that Legal Aid is being removed from “most civil and legal cases”. Solicitors chimed in to warn that cuts could see a third of law centres in England and Wales close.

While the proportion of civil cases has dropped from 52 per cent of all cases in 1998, to 29 per cent in 2007, the average spend on civil cases was 30 per cent higher than the rest of Europe by 2007.

The culprit has been named as divorce, or more widely as family matters – accounting for more than two-thirds of all cases.

Mr Clarke however doesn’t like comparing England and Wales with European countries such as Germany, for example, because their system is different to ours.

We should only compare ourselves with Common Law systems, he said, going on to claim that England and Wales spends four times as much as New Zealand on Legal Aid.

But there’s a good reason why we should compare our system with the rest of Europe, Mr Hynes told FactCheck: “New Zealand has a lower crime rate and they’re not a member of the EU –  there’s an enormous difference – you can’t compare us with Common Law countries when we’re part of a supernation system, the European system of human rights”.

The verdict

Our Legal Aid bill is a luxury the government has decided we can longer afford. “We finance a vast amount of litigation out of proportion to other countries,” Mr Clarke said today.

International comparisons might be littered with caveats – and of course our Legal Aid is spent on access to lawyers, with the overall spend on our Justice System comparatively low on the European scale.

But the Justice Secretary can’t be proved guilty on this point: our Legal Aid bill is streets ahead of other countries and only one step behind Northern Ireland’s. In 2008, NI spent 49.5 euros per capita on legal aid – or 0.29 per cent of GDP.

Alongside Norway, Northern Ireland, Scotland and England & Wales are the only European countries to spend more than 30 euros per capita on legal aid.

With costly criminal cases to blame, the Justice Secretary will be under pressure to safeguard the civil liberties of the poor.

By Emma Thelwell